ANTHONY HAYES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hayes appealed his sentence, arguing that a new statute reducing the period for which a trial court must retain jurisdiction over his sentence should apply retroactively to him. The state moved to modify the appellate mandate based on Castle v. State, and the court clarified its holding while denying the state's motion.
The appellate court agreed with Hayes that he should benefit from the new statute reducing retention of jurisdiction to one-third rather than one-half. However, the court clarified that retention of jurisdiction does not constitute 'punishment' under Article X, Section 9 of the Florida Constitution but rather permits the trial judge to control parole review.
[1] A statute reducing a criminal sentence does not apply to crimes committed before its enactment.
[2] A defendant is not entitled to the benefit of a lesser sentence if the legislation reducing the statutory sentence is enacted after the defendant commits the crime.
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Join FLexlaw to unlock all legal intelligence“retention of jurisdiction does not affect the punishment or sentence imposed on a defendant within the meaning of the foregoing constitutional provision but has an effect which "permits the trial judge to control parole review" during the term of the sentence imposed.”
Establishes the court's holding that retention of jurisdiction is not punishment for ex post facto purposes but rather a parole review control mechanism
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Join FLexlaw to unlock all legal intelligenceHayes was sentenced under the 1982 version of Florida Statutes section 947.16(3), which required the trial court to retain jurisdiction over one-half …
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PER CURIAM.
On May 30, 1984, the state filed a motion to recall and modify the mandate which was issued on April 27, 1984, in this case pursuant to our opinion which was filed April 11, 1984, 448 So. 2d 84. The state alleged in its motion that after the time period for filing a motion for rehearing had expired, the case of Castle v. State, 330 So. 2d 10 (Fla.1976), came to the state’s attention. The state alleged that our opinion conflicts with Castle v. State.
The state asks that we recall the mandate and modify our opinion. However, we do not agree that our holding conflicts with Castle. Therefore, we deny the state’s mo tion to withdraw the mandate, but we hereby modify our opinion to clarify the basis for the holding.
In this case the trial court retained jurisdiction over one-half of the sentence imposed pursuant to section 947.16(3), Florida Statutes (Supp.1982), which was the statute in effect at the time defendant committed the crime. The defendant argued on appeal that the trial court should have retained jurisdiction over only one-third of the sentence pursuant to section 947.16(3), Florida Statutes (1983), which became effective seven days before the defendant was sentenced. This court agreed with defendant’s argument and remanded the case for correction of the sentence to reflect retention of jurisdiction over one-third of the sentence.
The stated basis for our holding was that, contrary to previous cases in which the permissible period for retention of jurisdiction had been increased from one-third to one-half, see, e.g., Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983); Wicker v. State, 438 So. 2d 398 (Fla. 2d DCA 1983), this situation presented no problem of an illegal ex post facto application of an increased “punishment” to defendant. As the state has now pointed out, Article X, Section 9, of the Florida Constitution provides that “[rjepeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” This provision has been interpreted to mean that a defendant is not entitled to the benefit of a lesser sentence if the legislation reducing the statutory sentence is enacted after defendant commits the crime. Castle v. State, 330 So. 2d at 11.
Although in our opinion we referred to the increase in retention time as a more severe punishment, we should more properly have termed it a disadvantage to defendant which cannot be applied ex post facto, see Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), rather than a punishment as that term is used in Article X, Section 9, of the Florida Constitution. We conclude, for present purposes, that retention of jurisdiction does not affect the punishment or sentence imposed on a defendant within the meaning of the foregoing constitutional provision but has an effect which “permits the trial judge to control parole review” during the term of the sentence imposed. Overton v. State, 429 So. 2d 722, 723 (Fla. 1st DCA 1983).
OTT, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Glover v. State, 474 So. 2d 886 (Fla. 1st DCA 1985)…the defendant received a 10 year sentence for conspiracy to commit arson, the maximum statutory penalty at the time the offense was committed; at the time of trial, the maximum sentence had been statutorily reduced to five years. In Hayes v. State, 452 So. 2d 656 (Fla. 2d DCA 1984), the court held that retention of jurisdiction does not affect “punishment” or sentence, within the meaning of Article X, Section 9, but rather has an effect which permits the trial judge to control parole review during the terms…
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Walcott v. State, 460 So. 2d 915 (Fla. 5th DCA 1984)…isdiction to review a proposed parole release from one-half to one-third of the sentence. When the defendant was sentenced on June 28, 1983, the trial judge erred in retaining jurisdiction over the first one-half of the séntence. See Hayes v. State, 452 So. 2d 656 (Fla. 2d DCA 1984). Section 947.16(3), Florida Statutes, applies only to certain enumerated offenses, including burglary of a dwelling and burglary of a structure or conveyance in which a human being is present. The defendant was charged and convic…
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Nazworth v. State, 473 So. 2d 214 (Fla. 5th DCA 1985)…the court, in concluding that the change did not affect the quantum of punishment, did not believe that Art. 10, § 9, Fla. Const. was applicable. The Second District, in Hayes v. State, 448 So. 2d 84 (Fla. 2d DCA 1984), on motion to modify mandate, 452 So. 2d 656 (Fla. 2d DCA 1984), specifically held to this effect in ruling that the one-third period applied where the defendant was sentenced after the effective date of Chapter 83-131. It has since re-affirmed its position in Meyers v. State, 464 So. 2d 189 (…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981)
- Darion Northrup Castle v. State, 330 So. 2d 10 (Fla. 1976)
- Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983)
- Wicker v. State, 438 So. 2d 398 (Fla. 2d DCA 1983)
- Hayes v. State, 448 So. 2d 84 (Fla. 2d DCA 1984)
- Overton v. State, 429 So. 2d 722 (Fla. 1st DCA 1983)